Supreme Court Blocks Florida’s Drag Ban
Justices reject demand that the injunction blocking anti-drag law be scaled back, but remain silent on law's constitutionality.
The U.S. Supreme Court refused to overturn a lower court judge’s order blocking the state of Florida from attempting to enforce its ban on “adult live performances,” which many critics say is a veiled attempt to impose a blanket ban on drag shows by wrongly classifying them as inherently “sexual.”
In a 6-3 vote, the high court declined to take up an emergency request for a stay of the U.S. District Court Judge Gregory Presnell’s injunction, which not only blocked the state from enforcing the ban against “family-friendly” drag shows at Hamburger Mary’s in Orlando, but against drag performances throughout the state.
Florida authorities sought to have the scope of the judge’s injunction scaled back so that it would only apply to Hamburger Mary’s, while enabling state authorities to enforce the law.
The Florida Department of Business and Professional Regulation has enthusiastically moved to yank the business and liquor licenses of venues that have hosted drag shows, even before the law’s passage.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated that they would have taken up the state’s appeal of the Presnell’s injunction with an eye toward allowing the state to fine or revoke the licenses of all businesses, except Hamburger Mary’s, that permit on-site drag performances.
In a statement accompanying the Supreme Court’s order, Justice Brett Kavanaugh — joined by Justice Amy Coney Barrett — refused to reinstate the law, but cautioned that the court’s refusal to take up the emergency motion did not indicate the justices’ views on the law’s constitutionality, reports The Washington Post.
Kavanaugh argued the state of Florida did not contest the lower court’s finding that the drag ban may violate free speech, but instead took issue with the scope of Presnell’s order.
“To begin with, although Florida strongly disagrees with the District Court’s First Amendment analysis, Florida’s stay application to this Court does not raise that First Amendment issue. Therefore, the Court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment,” Kavanaugh wrote.
“The issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief,” he continued. “This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against nonparties to the litigation.”
Presnell previously blocked the anti-drag law on the grounds that its provisions likely violated the First Amendment by seeking to suppress the speech of drag performers and was overly vague in determining what constitutes “lewd conduct” or “lewd exposure.”
Florida authorities and conservative groups championing the law have argued the restriction on “adult live performances” is needed to protect children from being exposed to inappropriate or sexually explicit content.
But Presnell noted, as part of his injunction, that Florida law permits minors to attend R-rated movies if accompanied by parents, meaning that those children are being exposed to content that could be considered as objectionable as that contained in a drag show.
He also noted that the state’s imposition of a ban on minors’ attendance at drag performances usurps the power that the state’s parental rights law grants to parents by allowing them to make their own decisions regarding the raising and education of their children.
With the high court rejecting the state’s emergency request, the case returns to the 11th Circuit, which previously decided not to overturn or amend Presnell’s injunction.
John Paonessa, the owner of Hamburger Mary’s, told The Hill he was “absolutely thrilled” with the high court’s ruling.
“It’s unbelievable what you can do when you stand up for what’s right, and the courts see what it is,” Paonessa said. “That’s what’s happening everywhere, so I’m glad we were able to do it.”
He also said he believes Hamburger Mary’s will eventually prevail on the case’s merits, proving that the drag ban is simply an attempt to chill free speech.
“We’re taking a stand against the state, the governor trying to erase one-by-one and step-by-step, trying to erase the LGBTQI+ community,” he said, referring to a slew of anti-LGBTQ laws signed by Republican Gov. Ron DeSantis. “This sets a precedent, if we could win this, that we’re not going to stand for rulings where our rights are being violated.
“This is happening all across the country and other states as well, where these same laws are trying to be enacted,” Paonessa added. “And we’re fighting back against all of these states, and we’re winning.”
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